Letter from Rep. Zoe Lofgren (D-CA) and Rep. Rick Boucher (D-VA) to Secretary of Commerce Don Evans.
Date: May 9, 2003.
Re: DMCA and Free Trade Agreements with Singapore and Chile.
Source: TLJ transcribed from a copy provided by the office of Rep. Lofgren.		  

May 9, 2003

Secretary Don Evans
U.S. Department of Commerce
14th & Constitution Avenues, NW
Washington DC 20230

Dear Secretary Evans,

Wee write to you today to inform you of a very important issue concerning the Singapore and Chile Free Trade Agreements (FTA's) and the adverse impact they may have on technological innovation.

As you may know, the FTA's contain provisions that essentially mimic the Digital Millennium Copyright Act (DMCA), a law that is currently being litigated and whose scope is yet unclear. The DMCA, while intended to protect the legitimate interests of copyright holders, may also be endangering the rights and expectations of legitimate consumers. Contrary to the intent of Congress, as expressed by Judiciary Committee Chairman Henry Hyde at the time of the adoption of the DMCA[1], section 1201 of title 17, United States Code, has been interpreted to prohibit all users -- even lawful ones -- from circumventing technical restrictions for any reason, including non-infringing use of purchased content. There is substantial reason to believe that the DMCA is having an adverse impact on technological innovation. There are numerous cases in court or on appeal that would utilize this act to stifle competition and technological innovation.

This situation has stimulated vigorous debate both in America and in the Congress about what changes should be wrought on the existing DMCA. If Congress decides to clarify the DMCA to strike the correct balance between copyright holders and the interests of society, as intended by Congress, would the United States be in violation of the FTA's?

Approximately one month ago, Congresswoman Lofgren raised this question with United States Trade Representative staff. She specifically asked whether adoption of H.R. 1066 or H.R. 107, two bills currently in Congress that would amend the DMCA, would result in a breach of our treaty obligations if the FTA's are adopted. She was advised orally that the treaties would be breached by the enactment of these bills into law. Since that time, various interested persons in the technology sector of our economy have indicated their hope that these treaties would permit the Congress to amend the DMCA.

In order to consider what legislative action we should take, we sent a letter to Ambassador Zoellick on April 24 to give him an opportunity to clarify the clear direction received by his staff that the FTA's would be breached if Congress amended the DMCA. We asked him to respond before the President signed either the Singapore or Chile FTA's. Unfortunately, the President signed the Singapore FTA on Tuesday, May 6 and we have not yet received a response from the Ambassador.

We urge you to consider the tremendous impact that the FTA's may have on technological innovation. Including the DMCA in the FTA's will further entrench the chilling effect that the DMCA is already having on technological innovation and the free flow of ideas both in the United Sates and with our trading partners.

Sincerely,
 

______________________________
ZOE LOFGREN, Member of Congress

________________________________
RICK BOUCHER, Member of Congress

 

Footnote

[1] As the report of the Committee of the Judiciary of the House of Representatives accompanying the DMCA stated: "[A]n individual [should] not be able to circumvent in order to gain aunauthorized access to a work, but [should] be able to do so in order to make fair use of a work which he or she has acquired lawfully.' House Report 105-551, Part I, Section-by Section Analysis of section 1201(a)(1).